Asbestos Workers Joint Apprenticeship Committee, Indianapolis, IN, Case No. CR-3 (ALJ Dec. 12, 1972)

CASE NO. CR-3
FINDINGS AND
RECOMMENDATIONS
OF THE
ADMINISTRATIVE LAW JUDGE

In the Matter of

ASBESTOS WORKERS JOINT APPRENTICESHIP COMMITTEE, Indianapolis, Indiana
(Deregistration Proceeding under 29 CFR 30.13, Equal Employment Opportunity in Apprenticeship and Training)

BEFORE: Samuel A. Chaitovitz
Administrative Law Judge

APPEARANCES:
EDWARD A. BOBRICK, Attorney
712 Everett McKinley Dirksen Bldg.
219 South Dearborn Street
Chicago, Illinois 60604
For the U. S. Department of Labor

ROGER T. MOYNAHAN
2120 East Clay Street
Indianapolis, Indiana 46205
For Asbestos Workers Joint Apprenticeship Committee, Indianapolis, Indiana

ROGER T. MOYNAHAN
2120 East Clay Street
Indianapolis, Indiana 46205
For Master Insulator Association of
Indianapolis, Indiana

ROBERT J. SCOTT
946 North Highland
Indianapolis, Indiana 46202
For International Association of
Heating, Insulation and Asbestos
Union Local No. 18

   This matter is brought pursuant to Regulation 29 CFR 30, EQUAL EMPLOYMENT OPPORTUNITY IN APPRENTICESHIP AND TRAINING (36 F.R. 6810, April 8, 1971), hereinafter referred to as 29 CFR 30, seeking deregistration under the provisions of section 30.13, of the apprenticeship program of program sponsor, ASBESTOS WORKERS JOINT APPRENTICESHIP COMMITTEE, INDIANAPOLIS, INDIANA, hereinafter referred to as Program Sponsor. Program Sponsor, Asbestos Workers Joint Apprenticeship Committee, Indianapolis, Indiana, upon notification from the Bureau of Apprenticeship and Training of its intent to deregister the Sponsors e apprenticeship program, requested that a hearing be conducted herein as provided by the provisions of 29 CFR 30.13(b)(i).

    On October 31, 1972, a hearing pursuant to 29 CFR 30.16 was conducted at Indianapolis, Indiana to determine whether there was reasonable cause to believe that the apprenticeship program operated by the Program Sponsor was not operating in accordance with the provisions of 29 CFR 30, and thus, subject to deregistration.

    Having considered the evidence contained in the record, which consisted of the testimony of witnesses taken at the hearing, the comp1iance review file and other exhibits introduced, into evidence, and the stipulations and. representations of the parties, I hereby made the following Findings of Fact, Conclusions of law and Recommend Decision:

   1. The Asbestos Workers Joint Apprenticeship Committee of Indianapolis, Indiana, is a committee made up of equal. representatives from employers and employees within the frost insulation and asbestos industry, who are acting as program sponsors operating en apprenticeship program. The members of this Joint Apprenticeship Committee are also parties to a collective bargaining agreement.

   2. On March 3, 1967, the Program Sponsor submitted and filed With the Bureau of Apprenticeship and Training, U.S. Department of labor apprenticeship standards. These standards ware duly registered with the Bureau of Apprenticeship and Training as part of the National Apprenticeship Program in accordance with the fundamentals recommended by the Federal committee on apprenticeship. The standards met the requirements of Regulation 29 CFR 30, effective January 17, 1964 entitled, NONDISCRIMINATION IN APPRENTICESHIP AND TRAINING (Government's ex. A-1, p. A42 through A67 inclusive). The Program Sponsor at all times hereinafter mentioned had at least five or more indentured apprentices within its program.

   3. On April 8, 1971, amendments to Regulation 29 CFR 30 became effective. These amendments required, among other things, that program sponsors register with the Bureau of Apprenticeship and Training standards which set forth an affirmative action program. The amended Regulation required sponsors of apprenticeship programs with five or more apprentices to have taken the following action on or before January 8, 1972:

(1) to include in its standards an equa1 Opportunity Pledge as provided in section 30.3(b); (2) to adopt a written affirmative action plan meeting the requirements of section 30.4; and (3) adopt a selection procedure satisfying the requirements of section 30.5.

   4. On June 24, 1971, the Bureau of Apprenticeship and Training by letter notified the Program Sponsor that the Secretary of Labor had issued a revision to Part 30 Regu1ation 29 Code of Federal Regulations providing for equal employment opportunity in apprenticeship and training. It further notified the Program Sponsor that apprenticeship sponsors must include a prescribed equal opportunity pledge within their apprenticeship standards and that it must adopt standards which contain an affirmative action plan and selection procedures. The letter indicated a. compliance date of January 8, 1971 and. offered the assistance of the Bureau of Apprenticeship and Training to the Program Sponsor.

   5. On September 21, 1972, the Bureau of Apprenticeship and Training again notified the Program Sponsor that while its apprenticeship program was registered with the Secretary of labor, continuation of said registration was conditional upon its satisfying all requirements of Regulation 29 CFR 30. The Program Sponsor was again notified of the deadline for submitting standards which contained the necessary elements to satisfy the new regulation, and was again offered the assistance of the Bureau of Apprenticeship and Training to aid in its compliance with the new Regulations.

   6. By letter dated October 6, 1971, to the Bureau of Apprenticeship arid. Training the Program Sponsor requested that it be allowed

to retain its present apprenticeship selection method as was permitted under section 30.5(b)( k) of 29 CFR 30, common1y referred to as Option 4. It further informed the Bureau of Apprenticeship and Training that it would consider filing the equa1 opportunity pledge in accordance with 30.3(b). The Program Sponsor, however, did not file any revised standards with the Bureau of Apprenticeship and Training which complied with requirements of 29 CFR 30. The Program Sponsor was notified by the Bureau of Apprenticeship and Training that final approval of its request to proceed under Option 4 would be predicated upon the Bureaus a receipt of an approvable affirmative action plan or request for an exemption with supporting documents as provided under the provisions of' section 30.3(e). The Program Sponsor was again offered the services of the Bureau of Apprenticeship and Training's office for the purpose of complying with the new Regulations. Subsequent to these letters, representatives from the Bureau of Apprenticeship and Training met With members of' the Program Sponsor for the purpose of assisting it into compliance.

   7. On January 8, 1972, the effective date of the revised Regulations, the Program Sponsor did not have on file with the Bureau of Apprenticeship and Training revised standards which complied with the affirmative action requirements of the Regulations. However, the Bureau of Apprenticeship and Training had granted to the Program Sponsor an extension of 90 days within which to come into compliance. This extension was granted upon the representatives of' the Program Sponsor that it would work towards compliance. The granted extension bad an expiration date of March 20, 1972.

    8. On March 23, 1972, a compliance review was made by the Bureau of Apprenticeship and Training of the operations and standards of the Program Sponsor to determine if it was complying with the requirements of Regulation 29 CFR 30. This review revealed the following as to operations and standards of the Program Sponsor: (1) the Program Sponsor did not keep records for five years; (2) the sponsor bad not adopted a written affirmative action plan with the acceptable goals and timetables; (3) the Program Sponsor1 a selection procedure did not satisfy the condition of the one of the first three selection options in the Regulation; (4) the Program Sponsor was not entitled to the exemption provided in section 30.3(e) of the Regulations. As a result of the review, the Bureau of Apprenticeship and Training concluded that the Program Sponsor was not in compliance with the requirements of the Regulations and thus was subject to deregistration under the provisions of section 30.12.

   9. On March 28, 1972, the Program Sponsor was notified in writing by the Bureau of Apprenticeship and Training of the results of' the compliance review. It was further informed that the compliance review showed that it failed to have written standards which bad a written Equal Opportunity Pledge as provided in section 30.3(b), a written affirmative action plan meeting the requirements of section 30.4 and a selection procedure satisfying the requirements of section 30.5. The Program Sponsor was further informed that in view of the many instances wherein the Bureau of Apprenticeship and Training representatives met with it in order to aid in compliance with the Regulations, and in view of the extensions of time given as to a compliance date,

its continual failure to adopt and file standards which complied with the Regulations subjected the Program Sponsor to the ‘Sanctions" provision of' the Regulations as set forth in section 30.13. Accordingly, the Bureau of apprenticeship and Training informed the Program Sponsor that its program was subject to deregistration unless within 15 days of the notice, a hearing was requested.

   10. Pursuant to the Bureau's letter of March 28, 1972, the Program Sponsor did request a hearing. Notwithstanding said request from the Program Sponsor, the Bureau of Apprenticeship and Training continued to render necessary assistance to it in an effort to obtain voluntary compliance within a reasonable time. At a meeting held May 2, 1972, representatives from the Bureau of Apprenticeship and Training reviewed proposed standards drafted by members of Program Sponsor. After changes to the drafted standards were made (pursuant to the recommendations of the Bureau of Apprenticeship end Training), it was suggested that the Program Sponsor formally submit same in writing and signed by all parties to the Bureau of' Apprenticeship and Training for review and registration.

   11. Throughout the period covered by this hearing and prior thereto, the employer and the employee representatives of the Program Sponsor had been at issue with respect to the size and frequency of the apprenticeship class developed under the apprenticeship program. By virtue of this disagreement, the proposed revised standards (which the Bureau of Apprenticeship and Training assisted in developing) ware never agreed to by all the members of the Program

Sponsor. Thus, the standards were never prepared for signature, nor were they executed with the signatures of representatives of the two groups who comprised the Program Sponsor. The standards were never formally submitted as a written document, executed by the committee, to the Bureau of Apprenticeship and Training for approval and registration.

   12. The Program Sponsor had been a signatory to a supplemental agreement which was part of the Indianapolis, Indiana Home Town Plan and Equal Employment Opportunity Program. While the Indianapolis, Indiana Home Town Plan provided for affirmative action in apprenticeship selection which met the requirements of Title VII of Civil Rights Act of 1964, the supplemental agreement entered into by the Program Sponsor did not contain any such provision for ht selection of apprenticeship or for affirmative action in apprenticeship.

   13. The Program Sponsor contended that it was in compliance with the Regulations by virtue of the fact that (1) its apprenticeship program was in fact consistent with the requirements of the Regulations; (2) there was no need to submit to the Bureau of Apprenticeship and Training written standards since during the meeting of May 2, 1972, the Bureau of Apprenticeship and Training tacitly agreed to the standards developed by the parties; (3) it was entitled to the exemptions under 30.3 in that it was signatory to the Indianapolis, Indiana Home Town Plan.

   14. On October 31, 1972, a hearing in this matter was in progress. Near the conclusion of the hearing the Program Sponsor did submit to the Bureau of Apprenticeship and Training revised standards in writing properly executed with the signatures of all members of the Committee. These written standards contained the Equal Opportunity Pledge provided in section 30.3(b), a written affirmative action plan meeting the requirements of section 30.4, and an adopted selection procedure satisfying the requirements of section 30.5. The standards also contained a provision requiring the retention of records for a five year period. These standards were reviewed by the Bureau of Apprenticeship and Training, found to be in compliance with Regulation 29 CFR 30 and was considered registered as of that date.

   1. The Asbestos Workers Joint Apprenticeship Committee (program Sponsor) was made up of equal representatives from employer end employee groups and was a duly registered program with the Bureau of Apprenticeship and Training, said registration meeting the requirements of Regulation 29 CFR 30, effective January 17, 1964, entitled NONDISCRIMINATION IN APPRENTICESHIP AND TRAINING. The Program Sponsor was registered to conduct an apprenticeship program as part of the National Apprenticeship Program for the trade classification of asbestos worker.

   2. On April 8, 1971, amendments to Regulation 29 CFR 30 became effective, said amendments requiring affirmative action within the apprenticeship program. Regulation 29 CFR 30 was renamed EQUAL EMPLOYMENT OPPORTUNITY IN APPRENTICESHIP AND TRAINING and required, among other things, that program sponsors include in their standards an equal opportunity pledge as provided in section 30.3(b), a written affirmative action plan meeting the requirements of 30.4, and a selection procedure satisfying the requirements of section 30.5. These requirements were to be incorporated in program standards which were to be submitted and registered with the Bureau of Apprenticeship and Training. The Program Sponsor operated an apprenticeship program as defined, by section 29 CFR 30.2(c), which had in excess of five indentured apprentices and was thus subject to the provisions of section 29 CFR 30.4 and 29 CFR 30.5, among other provisions.

   3. The Program Sponsor was notified both through letters and through many conferences held with it by the Bureau of Apprenticeship and Training of its obligations to comply with the Regulations. It was also properly notified of the results of the compliance review. The Bureau of Apprenticeship and Training, by virtue of its efforts to bring the Program Sponsor into compliance made reasonable efforts to secure voluntary compliance on the part of the Program Sponsor within a reasonable time as set forth in section 29 CFR 30.9(d). Only after the compliance review, and after reasonable efforts were made to secure voluntary compliance, were the sanctions under section 30.l3 imposed.

   4. That pursuant to section 29 CFR 30.9 the Bureau of Apprenticeship and Training performed a compliance review of the program sponsor, said compliance review revealing that requirements of sections 30.3(b), 30.4, arid 30.5 were not complied with. In addition, the Program Sponsor failed to have standards which required the retention of apprenticeship records for a five year period.

   5. In view of the continual failure of the Program Sponsor to submit to the Bureau of Apprenticeship and Training written standards in proper form which contained an equal opportunity pledge provided in section 30.3(b), an affirmative action plan meeting the requirements of section 30.14 and a selection procedure satisfying the requirements of section 30.5, there was reasonable cause to believe that the apprenticeship program was not operating in accordance with the Regulations. The Program Sponsor was thus subject to deregistration proceedings as provided by section 29 CFR 30.13.

   6. The Program Sponsor was signatory to a portion of the Indianapolis, Indiana Home Town Plan. However, as the agreement between the Program Sponsor arid the Indianapolis Home Town Plan did not provide for equal employment opportunity for the selection of apprentices and for affirmative action in apprenticeship, the Program Sponsor did not qualify for the exemption under section 30.3(e) of the Regulation.

   7. The Program Sponsor made request that it be granted the right to retain its present apprentice selection method pursuant to

section 30.5, and. thus was under the obligation to submit its written affirmative program to the Bureau of Apprenticeship and Training. The Program Sponsor's failure to do so, also violated the provisions of section 29 CFR 30.5, commonly known as Option 4.

   8. Regulation 29 CFR 30 requires that an equal opportunity pledge, an affirmative action plan and selection procedures be in writing, and submitted to the Bureau of Apprenticeship and Training to continue registration. As subject Program Sponsor was a Joint Committee made up of equal representatives of employer and. Employee which had been established by a group of employers and a bonafide bargaining agent, standards developed by such Joint Committee, to be properly executed, required the signature of the representatives thereto.

   9. Apprenticeship standards which are duly registered are legal instruments which are the basis for allowing exemptions under the Fair labor Standards Act, the Davis-Bacon Act and other related acts, and thus oust conform to basic legal principles relating to the drafting end execution of documents. Oral statements or understandings relating to the content of standards are not sufficient to meet the requirements set forth in the Regulations (29 CFR 30.3, 29 CFR 30.4, and 29 CFR 30.5, 29 CFR 521.2(d)(f), 5213 and. 521.5).

   10. The Bureau of Apprenticeship and Training had reasonable cause to believe the apprenticeship program carried on by the Program Sponsor was not rating in accordance with Regulation 29 CFR 30, and thus, said Program Sponsor was subject to deregistration (Conc1usions of Law 1 through 9 and Findings of Fact 1 through 14).

   Therefore, since the Program Sponsor has come into compliance with Regulations, and in view of' the fact that the Bureau of' Apprenticeship and Training has, upon registration of the revised standards, recommended that the Program Sponsor not be deregistered., it is my recommended decision that the apprenticeship program carried on by the Asbestos Workers Joint Apprenticeship Committee of Indianapolis, Indiana, not be deregistered.

      Samuel A. Chaitovitz
      Administrative Law Judge

Dated at Washington, D. C.
this 12th day of December, 1972.